Columbus--The group that
passed Ohio’s marriage ban amendment
eight years ago has filed suit
against the petition text for a
proposed new amendment that would
repeal it and recognize same-sex
marriage.

The challenge was filed in the
Ohio Supreme Court on April 10
by the Ohio Campaign to Protect
Marriage, which backed the 2004
amendment, and its representative
Lori Viars.
She is a Republican activist and
heads the Warren County Right to
Life organization.

Attorney General Mike DeWine certified
the petition language, sponsored
by Freedom to Marry Ohio, on April 3.
The group is working to put the
measure on the ballot in 2013.

The complaint alleges that the
text is not fair and truthful and
should not have been certified.
If the high court agrees with Viars, Freedom to Marry Ohio will need to start over with
different language.

The court has given them until
May 4 to answer the complaint.
DeWine will have to defend his
decision to certify the petition
language, and the petitioners will
have to support their language
choice.

“Although we have not seen the
lawsuit, we are not surprised that
there are opponents trying to stop
the campaign,” said Freedom to
Marry Ohio CEO Mary Jo Kilroy in
a release. “We will continue to
exercise our right to petition.
We believe Ohio voters will support
the proposed amendment which allows
the freedom to marry while recognizing
the rights of religious institutions.”

As of April 16, DeWine had
not been served the complaint and
would not comment.

The text DeWine approved replaces
language he rejected in March.
It includes a summary and the amendment,
titled “The Freedom to Marry and
Religious Freedom Amendment.”

The actual amendment states: “Be
it resolved by the People of the
State of Ohio that Article XV,
Section 11 of the Ohio Constitution
be adopted and read as follows:
Section 11. In the State of Ohio
and its political subdivisions,
marriage shall be a union of two
consenting adults not nearer of
kin than second cousins, and not
having a husband or wife living,
and no religious institution shall
be required to perform or recognize
a marriage.”

Viars and
OCPM are represented by attorney
David Langdon and his law partner
Joshua Bolinger of
Sharonville, Ohio, and James Campbell
from the Alliance Defense Fund
of Scottsdale, Arizona.

Langdon authored the 2004 amendment
the new proposal would repeal.
The Alliance Defense Fund fights
against LGBT equality around the
nation. On the complaint, Viars lists
her address as the office of the
anti-gay Citizens for Community
Values in Sharonville, a Cincinnati
suburb. CCV organized and funded
the 2004 marriage ban campaign.

The complaint says the summary
certified by DeWine is “unfair,
misleading or untruthful” because:

“A. It falsely states that the
proposed constitutional amendment
would give religious institutions
the freedom to determine whom to
marry;

“B. It states that under the proposed
constitutional amendment religious
institutions would not be required
to perform a marriage, but it selectively
and arbitrarily omits that under
the amendment religious institutions
would not be required to recognize
a marriage;

“C. It states that the constitutional
amendment would allow two consenting
adults to marry regardless of gender,
when in fact it would allow two
consenting adults of the same gender
to be married, and would only allow
two consenting adults to marry
if they are not nearer of kin than
second cousins and they do not
have a husband or wife living;
and

“D. It does not adequately alert
prospective signers to the language
of the Constitution that would
be repealed by the amendment.”

Capital University Law School
professor Mark Strasser said he believes that the certified petition language
is “fair and accurate as far as
it goes,” but the point raised about religious institutions not being required to “perform” a
marriage vs. not being required
to “recognize” a marriage is a
valid one, and the strongest argument.

Strasser said
courts will later have to interpret
whether or not a religious organization
will be required to recognize the
same-sex spouse of an employee.

“Needless to say,” said Strasser, “not
all questions are addressed in
summaries. For example, it was
a matter of some dispute whether
Ohio’s marriage amendment precluded
domestic violence protections for
non-marital partners until the
Ohio Supreme Court resolved that
issue.”

“It’s a summary,” said Strasser. “At
one point in the complaint they
note it’s too long, while calling
for it to tell them more. They
can’t have it both ways.”

Challenges to petitions like this
one are not common but they do
happen, both before and after measures
get on the ballot.

In May 2004, Thomas Rankin and
Raymond Zander of
Westlake filed a similar suit against
then Attorney General Jim Petro
and Viars, alleging that the petition summary for the marriage
ban amendment was not fair and
truthful. Langdon represented the
petitioners in that suit.

In August 2005, long after the
constitutional amendment passed,
the Tenth District Court of Appeals
ruled that the action was moot
because the petitions had already
been circulated and the constitution
had already been amended.

In that case, however, the trial
judge ruled that the summary was
misleading and “the attorney general
improperly certified the summary.”

All three appellate judges in
that case opined that the trial
judge did not have the jurisdiction
to even consider whether or not
the petition summary language was
fair and truthful.

“[The legislature] vests the authority
to determine whether a submitted
summary constitutes a fair and
truthful statement of a proposed
matter solely in the attorney general,” wrote
the panel.

In effect, that decision took
away the right to challenge the
summaries on future petitions,
which the Supreme Court could reverse
with this decision.

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